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Former top UK official sees mistakes on both sides in Brexit negotiations and warns of ‘precipice’ in future relations

Wednesday, September 20, 2017

Lord
(John) Kerr, the author of Article 50 of the EU’s Lisbon treaty, spoke
to a crowded AEJ meeting in London on 15 September, after a heated
parliamentary debate on the ‘EU Withdrawal Bill’ exposed deep divisions
within both the Conservatives and Labour parties about the current path
to Brexit, and a week before Prime Minister Theresa May is due to make
an important policy speech on Brexit in Florence on Friday 22 September.
In Britain, fresh doubts have been cast on the future course of Brexit
by the Labour party’s direct challenge to thegovernment’s approach and
by loud demands from industry, business, science, universities and other
sectors to avoid a ‘hard Brexit’.

Lord
Kerr criticised fundamental mistakes made by both sides in the
negotiations in Brussels, which are seen as going badly. He warned that
the UK may be heading for a ‘precipice’ in its relations with Europe,
and urged Theresa May to take the initiative by presenting clear and
positive proposals in her coming Florence speech. The author of Article
50 also said that the UK could still revoke the letter of intent to
leave and stay inside the Union on the same terms as before last year’s
referendum. He made six main points:-

1
First, the UK government may be deluding itself about its ability to
shape the rules of the Brexit game about the terms of a ‘transitional
period’ following the UK’s planned departure in March 2019. The
Chancellor of the Exchequer, Philip Hammond, said the UK would not allow
the EU to adopt ‘protectionist agendas disguised as arguments about
financial stability’. But John Kerr says ‘Out is Out’: the UK will have
no seat in the European Council and no MEPs and will not be able to
influence the EU’s decisions. He suggests the UK should heed the words
of the chief EU negotiator, Michel Barnier -- ‘That is
not possible’--
spoken in response to a British suggestion that the UK would fix its
own economic regulations and standards after Brexit and have them
recognised by the EU.

2
After the UK has left the EU it cannot go back in ‘by the same door’,
by putting the Article 50 process into reverse. The UK will then become a
non-member State, and to re-join it would have to go through the
regular accession process. That process might be quite quick, he sys,
but the UK would lose all the concessions it now enjoys, including the
rebate that Mrs Thatcher won for the UK in the 1980’s.

3
Any extension of the 2-year negotiating period is unlikely because it
would require the unanimous agreement of the 27 other states and because
the UK has been such a fickle negotiating partner. The UK triggered
Article 50 before it had worked out its position on Brexit, John Kerr
says, and it wasted another 3 months having a general election before
the talks could start; now the EU has ‘moved on’. The EU 27 regard
immigration and the risks emanating from Putin’s Russia as more
important than Brexit, which was not mentioned at all in the
pre-election TV debate in Germany between Angela Merkel and her Social
Democratic rival Martin Schulz.

However,
if a British prime minister were to say ‘Give us 6 to 9 months to
consult the people’ over the Brexit deal that emerges in late 2018, by
means of a second referendum or some other form of ‘democratic
consultation’, John Kerr believes the EU side might agree to give the
British more time.

4
The UK has alienated its EU partners by behaving as if it is ‘already
two-thirds out’. John Kerr sums up the problem, saying: ‘ If you are
going to ask for favours, don’t insult them.’ He cites a string of basic
mistakes on the UK side: Theresa May’s failure to attend the EU’s
celebration of 60 years since the Treaty of Rome in March; Boris
Johnson’s scornful boycott of the EU foreign ministers’ special meeting
after Donald Trump’s election; and the lack of solidarity the UK showed
over major issues including the influx of Syrian refugees and bailouts
to avert more crises in Eurozone states. The first rule of diplomacy,
Kerr says, is: ‘Turn up at meetings!’

5
This was the surprise item in John Kerr’s 6-pack of ‘big thoughts on
Brexit’: in case the UK should change its mind before the Brexit date,
he says, it
canlegally withdraw its notice of intent given in the letter sent by Theresa May to European Council President Donald Tusk on
March 29
this year. That situation would ariseif the UK decided that the
country’s ‘intent’ to leave had changed. Would the UK lose its cherished
rebate from the UK’s contribution to the EU budget? ‘No!’, says Lord
Kerr: the rebate was unanimously agreed by EU leaders, and the UK would
continue to have a veto over its removal as long as it is a member
state.

Such
a U-turn by the UK would sorely test the patience of its EU partners,
and John Kerr suggests that in that situation – a hypothetical one for
now -- Britain might win back some credit from the core group of
Eurozone countries by declaring that in future non-Eurozone states would
not stand in the way of Eurozone measures aimed at achieving long-term
stability among states using the euro currency .

6
Lord Kerr says the UK is in the right in the dispute over the
‘sequencing’ of the Brexit talks. As the author of Article 50 he says
the EU has ignored the article’s carefully-drafted wording, which calls
for the Union to negotiate an agreement with a Member State that intends
to withdraw ‘taking account of the framework for its future
relationship with the Union’. Instead, the EU 27 have demanded that the
UK must first show sufficient progress on three specific areas –
including the emotive issue of the amount of money it should pay into
the EU’s budget – before the future relationship can be discussed. The
result is that any meaningful exchange about future relations looks like
being pushed back to the end of this year, leaving less than 12 months
before the deadline for an overall agreement to be approved by the
European Parliament.

What is to be done? John Kerr urges Theresa May to use her big speech
on Friday
to set out a positive framework for the ‘deep and special partnership’
she has said she wants with the EU after Britain leaves. He suggests
the UK could improve the climate greatly by offering to pay a
substantial sum to the EU during a transition period of two to three
years after Brexit, and proposing a strong defence, security and
intelligence partnership with the EU 27. In the end, he says, ‘No deal
would be very bad for Britain’.